Section 49 – Presumption and determination of age – Juvenile Justice

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.

This section provides that as soon as a juvenile charged of having committed an offence is brought before the Juvenile Justice Board, it becomes the primary duty of the Board to decide about his exact age on the basis of available evidence in order to find out whether he is within the age prescribed for juvenile or not.

As held by the Supreme Court in Arnit Das v. State of Bihar? the crucial date for determination of age of the juvenile is the date on which he is produced or brought before the Board not the date on which the offence was committed by him.

In Gopinath Ghosh v. State of West Bengal, the Apex Court held that the juvenile may be subjected to medical examination for the purpose of determination of his age, if necessary.

In Poulesh Pahan v. State of Jharkhand a juvenile case was registered against the accused for causing death by act done with intent to cause miscarriage under Section 314, I.P.C. The accused was found to be aged about 16-17 years by the Medical Board consisting of three doctors who had examined him after two years of occurrence. The High Court held that accused should be declared as juvenile on the basis of the finding of Medical Board as he was 15 years of age on the date of alleged occurrence (offence).

Where the juvenile in conflict with law, claims before the Board (competent authority) that he was a ‘juvenile’ when he committed the alleged offence, it would be bounden duty of the Court (now Juvenile Justice Board) to hold appropriate inquiry about the real age of the juvenile.

Any doubt or dispute about the real age of the juvenile should not be overlooked. Even where the question of age has not been raised by the juvenile or the complainant, the Court (now the J.J. Board) should decide it suo motu.

In the case of Ramdeo Chouhan v. State of Assam,1 the Supreme Court ruled that the date of birth recorded in the school register should be accepted and taken into consideration for determination of real age of the juvenile only if it has been recorded by a public servant in due discharge of his official duties.

Where the juvenile or child claims himself to be so, the burden of proving that he is within the prescribed age-limit is on himself and he should adduce oral or documentary evidence in support of his claim.

The Supreme Court has further ruled that where there are two conflicting opinions about the real age of the juvenile or the child, the one .which is favourable to the delinquent, should be accepted.

In Bikan Pandey v. State of Bihar, the plea of the accused child in a murder case that he was a child had been considered by the Trial Court and decided in negative. Such order not having challenged, became final. No arguments on that issue were raised either during trial or before the High Court. The Apex Court held that the disputed factual question which had attained finality in view of the earlier order could not be permitted to be raised before the Supreme Court.

Section 49 makes it obligatory on the part of authority /Court to conduct due inquiry and then only record a positive finding regarding age of the accused (appellant). Documentary evidence submitted for determination of date of birth could not be rejected merely on the ground that the said documents were Photostat copies. In the instant case, medical opinion was that the accused (appellant) was about 17 years of age at the time of the accident. Therefore, order rejecting application for his declaration as juvenile was not proper and hence liable to be set aside.

Sub-section (2) provides that where the Juvenile Justice Board or the competent authority has dealt with the case of a person treating him to be a ‘juvenile’ and subsequently it turns out that he was really not a juvenile at the time he was brought before the Board, the proceedings against him shall not be invalid merely because of the reason that he was not really a juvenile.

In Babloo Pasi v. State of Jharkhand and another, the question of presumption and determination of the age of juvenile under Section 49 of 2000 Act and Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 came up before the Supreme Court for adjudication.

The Court in this case, reiterated that the Medical Board’s opinion based on radiological examination is no doubt a useful guiding factor for determining the age of a person but its an opinion per se cannot be conclusive proof of age of the juvenile.

Commenting on the evidentiary value of the opinion of a doctor, based on X-ray tests as to the age of a person the Court reiterated its observations. In Ramdeo Chauhan alias Rajnath v. State of Assam and held:

“An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon text books on medical jurisprudence and taxology, while determining the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform.”

In its earlier decision in Arnit Das v. State of Bihar, also, the Court had expressed a similar view and observed that while dealing with a question of determination of age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper- technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile, and if two views may be possible on the same evidence, the Court should lean in favour of holding the accused to be juvenile in borderline cases.

The Courts should be zealous to see that a juvenile deserves full benefits of the provisions of 2000 Act but at the same time it is also imperative for the Courts to ensure that protection and privileges under the Act are not misused by unscrupulous persons.

Having discussed the broad guidelines and parameters of determination of the age of juvenile for the purpose of 2000 Act, the Apex Court in the instant case (Babloo Pasi’s case) held that as per Rule 22 of the Jharkhand JJ (C & P) Rules 2003, in the absence of birth certificate from the Corporation or Municipality or entry relating to date of birth in the school certificate, the Juvenile Board had rightly obtained the opinion of a duly constituted Medical Board but the opinion of the Board per se is not conclusive proof of the age of the person concerned.

The Medical Board carried out the ossification tests of the accused and opined his age between 17 and 18 years. The prosecution had placed before the Juvenile Board voter’s list of the constituency of Deoghar for the year 2005 in which the name of the accused appeared at Sr. No. 317 and his age was recorded as 20 years.

On the basis of this the Juvenile Board had declared the accused as ‘adult’ of more than 18 years in the background of the date of occurrence of incident. On appeal, the High Court set aside the order of the Juvenile Board holding the accused as ‘juvenile’.

The Supreme Court in appeal held that voter’s list though a public document in terms of Section 35 of the Act was not sufficient to prove the age of the accused. Also Juvenile Board had not summoned any of the members of Medical Board and recorded their statement.

It appears that physical appearance of the accused, had weighed with the Board in concluding that he was an adult. In short, the order of the Board fell short of enquiry as envisaged in Section 49 of the Act. In view of these facts, the appeal was allowed and the matter was remitted to CJM, Deoghar who was heading the Board. In the event the accused was found juvenile, he would be dealt with accordingly.